By Travis Perry │ Kansas Watchdog
OSAWATOMIE, Kan. — So far, data-grabbing government tendencies have yet to make a widespread appearance in the Sunflower State.
Kansas lawmaker Rep. Brett Hildabrand wants to keep it that way.
The Shawnee Republican gave his constituents a sneak peek Wednesday at a bill he plans to introduce in the 2014 legislative session. Dubbed the “Fourth Amendment Preservation and Protection Act,” Hildabrand said the bill is a pre-emptive strike against the prying eyes of Big Brother.
Short of obtaining a warrant or court order, the bill states that “(a)ll local and state governments are prohibited from possessing or attempting to possess information relating to an individual or group of individuals held by a third-party in a system of records; and no such information shall be subject to discovery, subpoena or other means of legal compulsion for its release to any person or entity or be admissible in evidence in any judicial or administrative proceeding.”
While some might feel it is common sense that digital information is afforded the same search and seizure protections as a person’s mailbox, Hildabrand argues that concept isn’t universally accepted.
“I want those same restrictions placed on electronic property,” Hildabrand told Kansas Watchdog.
“There’s good court cases involving physical mail, physical property, but as electronic data and technology advances there might not be a lot of good case law on that, so that was part of my intention with this is to shore up protections for electronic media,” he said.
The lawmaker said he penned the legislation in response to anecdotal accounts of law enforcement searching through cell phones during routine traffic stops and concerns with companies like Google releasing user data to government entities. He’s also concerned about police utilizing automatic license plate readers to assemble a database that could be used to track citizens’ whereabouts.
“My question is, what’s the purpose of that?” Hildabrand asked. “You’re essentially assuming a guilty populace in storing that info until you can confirm they’re guilty.”
In June 2013, Texas became the first state to enact a law, spearheaded by 29-year-old Republican Jonathan Stickland, requiring state and local law enforcement to obtain a warrant in order to rifle through private emails. Unfortunately, those same restrictions don’t apply equally at the federal level.
Under the much-maligned 1986-era Electronic Communications Privacy Act, federal law enforcement agencies are only required to get a warrant to access recent e-mails before they are opened by the recipient.
As we’ve noted many times before, there are no such provisions in federal law once the e-mail has been opened or if it has sat in an inbox, unopened, for 180 days. In March 2013, the Department of Justice acknowledged in a Congressional hearing that this distinction no longer makes sense and the DOJ would support revisions to ECPA.
Hildabrand added that the measure has support from several of his fellow libertarian-leaning colleagues in the Legislature, and even postulated bi-partisan endorsement from the likes of Sen. David Haley, D-Kansas City, and Rep. Gail Finney, D-Wichita.
Neither Democratic lawmaker returned calls for comment from Kansas Watchdog Thursday morning.
Hildabrand’s bill does contain exceptions to comply with the Kelsey Smith Act, which permits the release of cellular location information in an emergency situation.
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